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--:-- Sean Rameswaram: You ever wonder why they call it the lame duck?
--:-- Sean Rameswaram: Apparently, it used to be an investment term.
--:-- Sean Rameswaram: Ian Millhiser knows why.
--:-- Ian Millhiser: So yeah, it's a term from the 18th century.
--:-- Ian Millhiser: And a lame duck used to refer to an investor who had defaulted on their debts.
--:-- Ian Millhiser: And so like the idea was because they had defaulted on their debts, their ability to remain in the market was limited and their powers were diminished.
--:-- Ian Millhiser: And then that term came to be applied to politicians who were also on the way out.
--:-- Sean Rameswaram: Yeah.
--:-- Sean Rameswaram: Yeah. Ian usually writes about the Supreme Court for Vox, but lately he's been looking at the lame duck sessions presidents get and wondering whether it's high time the United States just do away with them.
--:-- Ian Millhiser: Yeah.
--:-- Ian Millhiser: So, I mean, my beat broadly focuses on legal policy and on the Constitution.
--:-- Ian Millhiser: And the U.S. Constitution is very bizarre in how it handles transitions of power.
--:-- Sean Rameswaram: Yeah.
--:-- Sean Rameswaram: So two months ago, the American people went to the polls and they said fairly emphatically, we do not want Donald Trump to be president anymore.
--:-- Sean Rameswaram: And yet here we are more than two months after the election and Donald Trump is still president.
--:-- Sean Rameswaram: And it doesn't have to be that way.
--:-- Ian Millhiser: You know, provided that we had the votes to amend the Constitution, it would be very easy to have a much shorter transition period.
--:-- Ian Millhiser: But as you say, it's in the Constitution.
--:-- Ian Millhiser: This is how it's worked from the jump.
--:-- Ian Millhiser: And this is how the founders envisioned the country working.
--:-- Sean Rameswaram: Why change it?
--:-- Sean Rameswaram: Let's talk about what the founders envisioned.
--:-- Ian Millhiser: The way that a presidential election was conducted close to the founding of the country is that people would have to travel wherever the election was being held.
--:-- Ian Millhiser: And that itself could be an ordeal if you lived many miles from your county seat.
--:-- Ian Millhiser: The ballots would be gathered in one place.
--:-- Ian Millhiser: They'd be counted.
--:-- Ian Millhiser: But there wasn't telephones.
--:-- Ian Millhiser: There wasn't even telegraphs.
--:-- Ian Millhiser: So the only way to get word of how many people in your community voted for who was to send someone probably by horse and buggy to a central location to tell them, hey, like, you know, we had this election and 800 people voted for George Washington.
--:-- Sean Rameswaram: So people would have to travel by horse and buggy, often through swamps, as the South especially wasn't very developed at this point in time.
--:-- Sean Rameswaram: And then once the state knew who had won the election in that state, they'd have to notify the presidential electors.
--:-- Sean Rameswaram: And so we would have to travel to the presidential electors, often across swamps by horse and buggy.
--:-- Sean Rameswaram: And then the electors would have to meet and then Congress would have to be.
--:-- Sean Rameswaram: And all of this just took a lot of time when you didn't have any way to communicate quickly, when you were traveling on horseback.
--:-- Sean Rameswaram: And when you didn't in many parts of the country have like good, reliable roads.
--:-- Ian Millhiser: So this nation that I'm describing right now, that doesn't look like what the United States looks like right now.
--:-- Ian Millhiser: Like we don't need this big, long period that exists to accommodate the fact that it used to take a really long time to conduct an election.
--:-- Sean Rameswaram: Well, because I know you just can't wait.
--:-- Sean Rameswaram: Let's talk about what the presidential transition in this lame duck period looks like some, you know, 250 years later in 2021.
--:-- Ian Millhiser: Right.
--:-- Ian Millhiser: How has this transition gone from, let's say, November 7th when the major media networks and much of the country, the majority of the country realized Donald Trump had lost the election?
--:-- Sean Rameswaram: So this has been an unusually active lame duck period.
--:-- Sean Rameswaram: So it started really the night of the election with Donald Trump falsely claiming that the election was stolen from him.
--:-- Sean Rameswaram: From all of us, from me, from you, from our country.
--:-- Sean Rameswaram: This was a fraudulent election.
--:-- Sean Rameswaram: We've had a rush of corrupt pardons.
--:-- Sean Rameswaram: With just four weeks left in his presidency, President Trump late tonight granted 15 pardons and five commutations, among them full and unconditional pardons for two congressmen who had been convicted on corruption charges and forced to resign.
--:-- Sean Rameswaram: We've had a major stimulus bill.
--:-- Sean Rameswaram: A standoff between President Trump and U.S. lawmakers has ended with word he has finally signed a U.S. COVID relief and government funding bill.
--:-- Sean Rameswaram: And then we had an insurrection.
--:-- Sean Rameswaram: And all of this was happening under the auspices of a defeated president and under the auspices of a Senate majority leader who we now know is about to become the Senate minority leader.
--:-- Ian Millhiser: Okay, so that was the condensed version.
--:-- Ian Millhiser: But since this particular lame duck period is the reason you're arguing, you know, the country reconsider the lame duck period altogether.
--:-- Sean Rameswaram: Yeah
--:-- Sean Rameswaram: So I mean election night was basically election week this year because it took so long to count the ballots
--:-- Sean Rameswaram: And so people probably remember there was a while early in election night where Donald Trump looked like he was performing very well because a lot of his ballots were counted before the mail ballots that overwhelmingly favored Biden
--:-- Sean Rameswaram: And so if you just looked at the ballots that had already been counted on election night, you might have come away with the misimpression that Donald Trump was winning.
--:-- Sean Rameswaram: And Trump went on TV and decided to feed that misimpression by falsely declaring himself to be the victor.
--:-- Sean Rameswaram: Because of the lame duck period, he then had more than two months to feed this myth that the election was somehow stolen for him.
--:-- Sean Rameswaram: And I think that plays a big role in why we saw the insurrection recently, because it was just two months of this unfiltered propaganda.
--:-- Sean Rameswaram: Once Trump seemed to accept that he probably wasn't going to stay in office much longer, he then started doling out favors to his cronies and specifically doling out pardons to people like Michael Flynn, his former national security advisor, or George Papadopoulos, his former campaign manager.
--:-- Sean Rameswaram: And then we had a big fight over two really important bills.
--:-- Sean Rameswaram: One was an almost $1 trillion stimulus package.
--:-- Sean Rameswaram: The other was the annual legislation that basically authorizes the entire military budget for the next year.
--:-- Sean Rameswaram: And you'll recall Trump vetoed the defense authorization bill and that veto had to be overridden.
--:-- Sean Rameswaram: He threatened to veto the stimulus bill at the very last moment.
--:-- Sean Rameswaram: And Republicans who had been defeated in the election got to play an outsized role in deciding what would be in those bills because, of course, they still had a Republican president even though he had been defeated.
--:-- Sean Rameswaram: And so you had major legislation being shaped by people who had been voted out of office.
--:-- Sean Rameswaram: And then you had the insurrection.
--:-- Sean Rameswaram: And it wasn't just that Donald Trump had spent two months repeating a lie that fueled this insurrection.
--:-- Sean Rameswaram: It was that the participants in that election had two months to plan the thing.
--:-- Sean Rameswaram: And I don't know if that insurrection would have happened if the lame duck period hadn't given them a huge amount of time to plan for it.
--:-- Ian Millhiser: And so this has been a particularly disastrous lame duck period.
--:-- Ian Millhiser: And a lot of these disasters, I think, could have been averted if it wasn't for the fact that this thing is so long.
--:-- Sean Rameswaram: I mean, we can assume that the insurrection wasn't the founders' intention, but they did build pardons into the Constitution.
--:-- Sean Rameswaram: They did build the ability for the president to veto legislation into the Constitution.
--:-- Sean Rameswaram: How much of what the outgoing president has done in the past few months is in total violation of, let's say, you know, the founders' intent and how much of it is just par for the course on some level?
--:-- Ian Millhiser: I mean, presidential pardons certainly aren't a new thing.
--:-- Ian Millhiser: Right.
--:-- Ian Millhiser: I want to state out front that nothing that Donald Trump has done, at least none of the things that he's done in exercising his official powers as president is unconstitutional.
--:-- Ian Millhiser: The problem is the Constitution.
--:-- Ian Millhiser: You know, the problem is that the Constitution allows a defeated president to continue to wield power for so long.
--:-- Sean Rameswaram: And so, yes, he does have the power to pardon.
--:-- Sean Rameswaram: That is in the Constitution.
--:-- Sean Rameswaram: The problem isn't that it is unconstitutional for the president to exercise presidential powers after they're defeated.
--:-- Sean Rameswaram: The problem is that the Constitution lets the president exercise these powers.
--:-- Ian Millhiser: And as bad as the Trump transition has been, this problem of presidents using their power in very shady ways after they are supposed to leave office is not a new problem.
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--:-- Ian Millhiser: Ian, I think, you know, the mistakes of the outgoing president in his lame duck period are pretty fresh on everyone's mind.
--:-- Ian Millhiser: But you wrote an article up on the website Vox.com that points to a few examples throughout history.
--:-- Sean Rameswaram: How many you got?
--:-- Ian Millhiser: Yeah.
--:-- Ian Millhiser: So, I mean, before this disastrous transition that we're now finally coming to the end of, I think there were three previous transitions that really just ended catastrophically.
--:-- Sean Rameswaram: What the worst
--:-- Ian Millhiser: So the worst transition in American presidential history is the transition from James Buchanan to Abraham Lincoln.
--:-- Ian Millhiser: This is how the Civil War happened.
--:-- Ian Millhiser: That's pretty bad.
--:-- Sean Rameswaram: Yeah, it was bad.
--:-- Ian Millhiser: So after Lincoln was elected, Lincoln was from the newly formed Republican Party, which at the time was the closest thing that America had to a racial justice party.
--:-- Ian Millhiser: And the Southern slaveholding states didn't like that very much.
--:-- Ian Millhiser: And so after Lincoln's election, but before his inauguration, seven states seceded while a politically paralyzed Buchanan presided.
--:-- Ian Millhiser: That was made worse by the fact that Buchanan was pro-slavery.
--:-- Ian Millhiser: He gave an address to Congress while this was all going on where he said basically, look, I can't do anything about these seceding states.
--:-- Ian Millhiser: I can't even secure, use the military to secure the U.S. military forts in the South.
--:-- Ian Millhiser: And so what happened was that the South got this entire lame duck period.
--:-- Ian Millhiser: And it's worth noting that back then the lame duck period was longer.
--:-- Ian Millhiser: It went until March.
--:-- Sean Rameswaram: The South got this long lame duck period where they got to set up their government, where Southern militias actually invaded many of these U.S. military forts and seized weapons that would later be used to fight a civil war against the North.
--:-- Sean Rameswaram: The ensuing civil war would become known as Buchanan's War.
--:-- Ian Millhiser: I don't think that the civil war could have been avoided.
--:-- Ian Millhiser: But if Lincoln had come into office much sooner, he would have potentially been able to secure those forts.
--:-- Ian Millhiser: He could have begun the civil war more quickly and prevented the South from consolidating its government.
--:-- Ian Millhiser: And the war wouldn't necessarily have been as bloody.
--:-- Sean Rameswaram: OK, so a presidential lame duck that started a civil war is probably hard to beat, but you still flagged a couple more examples.
--:-- Ian Millhiser: Yeah, I mean, like having started with the civil war, I feel like my next example is going to be a bit of an anticlimax.
--:-- Sean Rameswaram: So the 1892 election happens.
--:-- Sean Rameswaram: Grover Cleveland defeats Benjamin Harrison.
--:-- Sean Rameswaram: Benjamin Harrison was not happy that he was defeated.
--:-- Sean Rameswaram: He had some economic disagreements with Cleveland.
--:-- Sean Rameswaram: And so Republican newspapers after Cleveland won just started spreading the idea that the markets are going to collapse.
--:-- Sean Rameswaram: Everyone's investments are going to dry up.
--:-- Sean Rameswaram: Cleveland's economic policies are going to destroy everything.
--:-- Sean Rameswaram: You know, boo scary tariff.
--:-- Sean Rameswaram: And a lot of investors listened to these Republican newspapers and there was a panic.
--:-- Sean Rameswaram: The market started collapsing.
--:-- Sean Rameswaram: At one point, J.P. Morgan, the banking titan, went to the lame duck president, Harrison, and said, You've got to do something.
--:-- Sean Rameswaram: Like, you've got to reassure people because we're going into a depression.
--:-- Sean Rameswaram: And Harrison refused to do anything.
--:-- Sean Rameswaram: His Treasury secretary said explicitly, look, Our job is just to keep there from being a catastrophe until the Cleveland administration comes in.
--:-- Sean Rameswaram: Then it's their problem.
--:-- Sean Rameswaram: And his treasury sector actually spent his last several days in office sitting for his official portrait while the markets were collapsing.
--:-- Sean Rameswaram: So the result was that there was a depression.
--:-- Sean Rameswaram: I don't know if it could have been avoided if Harrison had bothered to do his job in that period, but it certainly didn't help.
--:-- Ian Millhiser: So we've got a civil war and a huge economic downturn.
--:-- Ian Millhiser: What else rates?
--:-- Sean Rameswaram: Well, we got the Great Depression.
--:-- Sean Rameswaram: Oh, an even bigger economic, even bigger depression.
--:-- Ian Millhiser: Yeah.
--:-- Sean Rameswaram: So this was, of course, the transition from Hoover to Roosevelt and Hoover lost in a landslide, largely because people were not happy with his listless response to the depression.
--:-- Sean Rameswaram: Roosevelt campaigned on what at the time was completely unprecedented.
--:-- Sean Rameswaram: I mean, the type of active government, the regulation, the like the kind of big federal programs that Roosevelt promised in the New Deal were just unprecedented in this period.
--:-- Sean Rameswaram: They were viewed as illegitimate by many of the elites in American society.
--:-- Sean Rameswaram: And one person who viewed them as illegitimate was Herbert Hoover.
--:-- Sean Rameswaram: And so rather than trying to spending that lame duck period mitigating the Depression, Hoover spent it trying to convince Roosevelt to embrace austerity and to abandon the New Deal.
--:-- Sean Rameswaram: It didn't work, but it delayed our ability to respond to the Great Depression.
--:-- Sean Rameswaram: And it's worth noting that I mentioned before that it used to be that presidential transitions and congressional transitions happened in March.
--:-- Sean Rameswaram: While the Hoover to Roosevelt transition was going on, I think it was so obvious to the country that this long lame duck period that we had back then was untenable, that the 20th Amendment was ratified.
--:-- Sean Rameswaram: It was actually the 20th Amendment that shortened the lame duck period to January.
--:-- Ian Millhiser: Yeah.
--:-- Sean Rameswaram: I mean, I think that there's several problems that are inherent in any kind of lame duck period.
--:-- Sean Rameswaram: One is just that it's anti-democratic.
--:-- Sean Rameswaram: You know, again, Donald Trump was thrown out of office.
--:-- Sean Rameswaram: The American people said, we do not want this guy to be in charge.
--:-- Sean Rameswaram: So why is he still wielding power?
--:-- Sean Rameswaram: The second problem is that when you've been voted out of office and you know you don't have to face the voters again, there's no accountability mechanism.
--:-- Sean Rameswaram: And so you tend to see things like corrupt pardons.
--:-- Sean Rameswaram: You know, you know, it can be a time where presidents can push unpopular policies because what do they have to lose if they've already been thrown out of office?
--:-- Sean Rameswaram: And then there's another problem, which is that other countries don't know how to conduct diplomacy necessarily with a lame duck president.
--:-- Ian Millhiser: In the early 1980s, two senators proposed shortening the lame duck periods that the presidency would turn over on November 20.
--:-- Ian Millhiser: Senator Claiborne Pell from Rhode Island was one of the sponsors of this amendment.
--:-- Ian Millhiser: And one of the reasons that he gave was he pointed to the Iran hostage crisis in the late 70s and early 80s.
--:-- Ian Millhiser: While this was going on President Carter was defeated.
--:-- Ian Millhiser: And the problem was that Carter couldn't effectively negotiate with the Iranians to free these hostages because Carter was on his way out.
--:-- Ian Millhiser: And like Iran didn't even have any way of knowing whether they could trust Carter's successor to keep a deal that they struck with Carter.
--:-- Ian Millhiser: And Reagan couldn't negotiate with the Iranians because Reagan wasn't president yet.
--:-- Ian Millhiser: So he wasn't authorized to speak on behalf of the United States.
--:-- Ian Millhiser: So you had this period where there was a foreign policy crisis going on and there was no one person who was really empowered to speak on behalf of this country.
--:-- Sean Rameswaram: Day one of Ronald Reagan's presidency and day one of freedom for 52 Americans.
--:-- Sean Rameswaram: Though thousands of miles apart, these two historic events moved almost on parallel tracks today.
--:-- Sean Rameswaram: The new president had not been in office an hour when the former hostages became free men and women again.
--:-- Sean Rameswaram: And so one of the arguments that Senator Powell raised was, look, we just can't have that for the sake of our own national security.
--:-- Sean Rameswaram: Other nations need to know who to talk to if they want to speak to someone who speaks on behalf of the United States.
--:-- Ian Millhiser: How do other countries do this?
--:-- Sean Rameswaram: Most of our peer nations have much quicker transitions, partially because they have constitutions that weren't written in the horse and buggy era.
--:-- Sean Rameswaram: So let's start by talking about our neighbor to the north.
--:-- Sean Rameswaram: Canada last had a transition of power where power shifted from one party to another in 2015.
--:-- Sean Rameswaram: And from the day that Justin Trudeau's liberal party won that election until the day that Justin Trudeau was sworn in was a little over two weeks for them to get from their election to the completion of the transition period.
--:-- Sean Rameswaram: And that's actually fairly long compared to other countries.
--:-- Sean Rameswaram: India took 10 days for its transfer of power the last time they had a transfer from one party to another.
--:-- Sean Rameswaram: Japan also took 10.
--:-- Sean Rameswaram: France, when Emmanuel Macron was elected president, he became president seven days later.
--:-- Sean Rameswaram: And Britain of the nations I've looked at has done this the fastest.
--:-- Sean Rameswaram: Britain, when the Tories beat the incumbent labor government in 2010, that's the last time that there was a transfer of partisan power in Great Britain.
--:-- Sean Rameswaram: David Cameron was sworn in as prime minister five days after the election.
--:-- Sean Rameswaram: So, you know, modern democracies don't find it difficult to do quick transitions.
--:-- Sean Rameswaram: I don't think that we could do our transition instantaneously.
--:-- Sean Rameswaram: I mean, there's still some time necessary to count the votes and to certify the elections.
--:-- Sean Rameswaram: And that, you know, especially in a decentralized system where you have 50 different states all with their own process, maybe that takes two weeks.
--:-- Sean Rameswaram: Maybe we need a full two weeks.
--:-- Sean Rameswaram: Maybe we can't do it as fast as England does it or as fast as India does it.
--:-- Sean Rameswaram: But there's no reason why we need to spend two and a half months on this.
--:-- Sean Rameswaram: You know, we have known for sure that Joe Biden was the president-elect of the United States for more than two months now.
--:-- Ian Millhiser: Well, I mean, I think realistically, there's a lot of things that are higher on the priority list right now.
--:-- Ian Millhiser: The Senate has to confirm Biden's cabinet.
--:-- Ian Millhiser: Biden just proposed a nearly two trillion dollar stimulus bill.
--:-- Ian Millhiser: There's an impeachment trial coming up.
--:-- Ian Millhiser: So like there are a lot of items on the list.
--:-- Ian Millhiser: And there also isn't going to be another presidential transition for at least another four years.
--:-- Ian Millhiser: So we've got time to deal with this.
--:-- Sean Rameswaram: But I hope that we make the choice to fix this problem.
--:-- Sean Rameswaram: It's very hard to amend the Constitution, but I don't see a reason why either party should oppose this.
--:-- Ian Millhiser: You know, Democrats, they've just seen what can go wrong if you have a long transition.
--:-- Ian Millhiser: And Republicans, like, they have no way of knowing that they would be hurt by it.
--:-- Ian Millhiser: They could be helped by it.
--:-- Ian Millhiser: I mean, if they push through an amendment right now that shortens the transition period, The biggest loser out of that amendment is going to be Joe Biden because it's going to cut two months off of his term.
--:-- Ian Millhiser: Maybe that's enough for Republicans to say that, you know, we like that enough that we'll do the right thing here.
--:-- Sean Rameswaram: So, you know, I don't know that there is yet been a movement to get rid of this long lame duck period.
--:-- Sean Rameswaram: But we have seen how it can go disastrously wrong.
--:-- Sean Rameswaram: And I hope that a movement like that formed.
--:-- Sean Rameswaram: So there's no need to spend this long waiting for a new president to be sworn in ever again.
--:-- Sean Rameswaram: You can read Ian's piece about the lame duck and why he thinks it's time to shorten it even further over at Vox.com.
--:-- Sean Rameswaram: I'm Sean Rameswaram for him.
--:-- Sean Rameswaram: It's Today Explained.
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